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Can Alberta’s Information and Privacy Commissioner Order Disclosure to Verify a Claim of Solicitor-Client Privilege?

The Supreme Court of Canada has granted leave to appeal a decision of the Alberta Court of Appeal which held that the Alberta Information and Privacy Commissioner was not empowered by the Freedom of Information and Protection of Privacy Act (“FOIPPA”) to order the production of documents subject to solicitor-client privilege.

The issue arose in October 2008 when a former employee of the University of Calgary made a request under section 7 of FOIPPA seeking records pertaining to her employment that were in the University’s possession. The University refused to disclose some of the records, relying on solicitor-client privilege.

In order to review the University’s decision, the Information and Privacy Commissioner invoked section 56(3) of FOIPPA, which states “despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection…(32).”

The University sought judicial review of the Commissioner’s decision, and the matter was referred to the Alberta Court of Queen’s Bench. The Court of Queen’s Bench upheld the Commissioner’s decision, stating that the language of FOIPPA was clear and that the Commissioner was empowered to compel production of the records in order to assess whether solicitor-client privilege applied. The matter was further appealed by the University.

The Alberta Court of Appeal unanimously disagreed with the lower Court’s decision, instead finding that FOIPPA does not authorize the Commissioner to order production of records that are cloaked with solicitor-client privilege. The Court of Appeal relied on the case of Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, in which the Supreme Court of Canada stated that “legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively.” Because of the central importance of solicitor-client privilege to the legal system, and upon application of a strict interpretation, the Court of Appeal held that FOIPPA does not “clearly, explicitly and specifically authorize the infringement of solicitor-client privilege.”

The Supreme Court of Canada will now hear the case. Stay tuned for their decision.

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